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State v. Nicholson

Court of Appeals of Ohio, Fifth District, Stark

August 21, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DAMARCUS NICHOLSON Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. 2016 CR 01465(A)

          For Plaintiff-Appellee, JOHN D. FERRERO PROSECUTING ATTORNEY, KRISTINE W. BEARD ASSISTANT PROSECUTOR.

          For Defendant-Appellant DAMARCUS NICHOLSON, BELMONT CORR. INSTITUTION.

          JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, J.

          OPINION

          WISE, JOHN, J.

         {¶1} Appellant Damarcus Nicholson appeals the decision of the Court of Common Pleas, Stark County, which denied his request for a transcript at State expense of certain criminal proceedings that had ended in a mistrial. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

         {¶2} In August 2016, Appellant Nicholson was indicted by the Stark County Grand Jury on one count of trafficking in heroin, one count of aggravated trafficking in drugs, one count of possession of heroin, and one count of aggravated possession of drugs.

         {¶3} On August 22, 2016, appellant filed a motion to suppress evidence of drugs that had been seized from a rental vehicle he had been using. On September 9, 2016, the trial court denied appellant's motion to suppress, concluding that appellant lacked standing to seek suppression of the evidence seized from the rental vehicle.

         {¶4} The matter proceeded to a jury trial on September 28, 2016. However, the matter ended in a mistrial on the same day, based on an issue involving a motion in limine.

         {¶5} Following a second jury trial, commencing on September 29, 2016, appellant was found guilty as charged in the indictment. The trial court sentenced him on Count I, trafficking in heroin, to a prison term of eight years. For purposes of sentencing only, Counts II and III were merged into Count I, and a twelve-month sentence on Count IV was ordered to be served concurrently, for an aggregate sentence of eight years.

         {¶6} Appellant then appealed directly to this Court; however, we affirmed his conviction on May 15, 2017. See State v. Nicholson, 5th Dist. Stark No. 2016CA00210, 2017-Ohio-2825.

         {¶7} In the meantime, the trial court issued a written judgment entry on October 11, 2016, memorializing the mistrial that had occurred on September 28, 2016. In addition, on April 28, 2017, shortly before the issuance of our decision in regard to appellant's direct appeal, appellant filed a pro se request with the trial court for a transcript of the proceedings leading to the mistrial of September 28, 2016.

         {¶8} On May 2, 2017, via judgment entry, the trial court denied appellant's request for said transcript.

         {¶9} On May 18, 2017, appellant filed a pro se notice of appeal. He herein raises the ...


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